Notes on Introduction of Hegel's Rechtsphilosophie

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Elements of Philosophy of Right

Introduction Sec.1~21.

Sec. 1~2: The Speculative Method

In Section 1 Hegel says the subject-matter of philosophical science of right is the Idea of right (Idee des Rechtes). Idea here means the concept and its actualization. The concept (Begriff) in Hegelian sense is the identity between thinking (subjective) and being/existence (objective). Actualization has two kinds from Hegel’s perspective: one is superfacial and related to external contingency, opinion, appearance without essence, untruth, deception and the other is essence. Only the actualization posited by the concept itself is the one related to essence. Besides, Hegel points out that the concept itself and its actualization are two inseparable aspects of the same thing. They are all essential moments of...

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Elements of Philosophy of Right

Introduction Sec.1~21.

Sec. 1~2: The Speculative Method

In Section 1 Hegel says the subject-matter of philosophical science of right is the Idea of right (Idee des Rechtes). Idea here means the concept and its actualization. The concept (Begriff) in Hegelian sense is the identity between thinking (subjective) and being/existence (objective). Actualization has two kinds from Hegel’s perspective: one is superfacial and related to external contingency, opinion, appearance without essence, untruth, deception and the other is essence. Only the actualization posited by the concept itself is the one related to essence. Besides, Hegel points out that the concept itself and its actualization are two inseparable aspects of the same thing. They are all essential moments of the Idea. Because concept’s actualization endows pure concepts with divergent shapes, this actualization is also called Dasein [existence].

In Section 2 Hegel applies his opinion above to point out the starting point of philosophy of right. He considers that if our goal of philosophical analysis is to grasp the Idea, then we must observe the immanent development of the state of affairs (Sache), because the Idea would unfold itself in the concrete context, namely the objects in our experience. Thus, in our philosophy of right, we would trace the actualization of the concept of right. This concept is our starting point. Remember, however, that this concept is also the result and truth of what preceded it, thus in our analysis, we take the concept of right as given. To put it in another way, we just presuppose this concept and could not justify it in philosophy of right.

Hegel here doesn’t mean that we base our philosophy on quicksand, but points out that if we want to have a rigorous philosophical science, there should be no presupposition at the beginning of our analysis. He gives up the famous linear method used by Descartes, but adopts a circular one, which means a definition of concept is not the stable basis of our building, but the result of our research. In this view, Hegel criticizes two popular methods in his time. This first method reaches concept by means of etymology or by abstraction from particular cases. Hegel thinks it’s wrong in double ways, namely leaving out the necessity of the thing in and for itself, and the nature of the concept, because definitions, from Hegel’s perspective, should contain universal determinations, but this method bases concepts on human feelings and ideas. The second method is a kind of representation theory, which claims the necessity or the criterion of a concept is our mind could depict what is given to us accurately. Hegel considers this method is wrong because when we want to know whether our mind has depicted something accurately, we have to use concept as a criterion. Thus, this method is begging the question.

Sec. 3: Philosophy and Jurisprudence

In this section, Hegel explains why right is in general positive. In its form, right has its validity within a state, which constitutes the basis of our knowledge of right. In its content, right in a state (1) has some certain national character of a people, its stages of historical development and the whole context of relations governed by natural necessity; (2) a system of legal right must contain the application of the universal concept to the particular and externally given characteristics of objects (a process of subsumption); (3) final determinations required for making decisions in actuality.

Hegel emphasizes the importance of positive right in three aspects: (1) positive right is opposed to feelings, inclinations and arbitrariness and philosophy cannot recognize the latter’s authority; (2) the force and tyranny is the element in positive right, but not the essence; (3) indicating the limits of philosophical right and pointing out just speculative deduction could not give rise to a positive code of laws.

Then Hegel talks about the relationship between natural law and positive right. They are difference, but not opposite. Positive right is stemming from natural law.

Besides, Hegel points out two methods for us to analyze right. One is historical, the other is philosophical. Hegel confirms the value of historical method, but he insists that these two methods should not be confused with each other. Historical method, as Montesquieu claims, consider legislation is in the context of all the other determinations which constitute the character of a nation and age. Within this context, positive right gains its genuine significance and justification. This method unfolds the historical causes of positive right, and it is a kind of explanation or comprehension. It does nothing about the essence, the concept of right, because it could not give justification to the necessity of positive right. Hegel then criticizes some scholars who have confused these two methods. Gustav Hugo is one of them. In his work, sometimes he defended old legal provisions from historical perspective, and sometimes he told us some legislation could not satisfy the highest demands of reason. At last, Hegel talks about logical consistence is not the core of philosophical analysis of right, because it remains in the field of understanding, not reason. Historically speaking, the inconsistency of Roman jurists should be regarded as one of their greatest virtues, for it enabled them to dissociate themselves from unjust and abominable institutions.

Sec. 4~10: Freedom

In Section 4, Hegel says will is the point of departure of right, and the will is free, thus freedom is the substance and determination/destiny (Bestimmung) of right [Major Premise]. Right is in the realm of spirit. Spirit means the unity of consciousness and being/nature [Minor Premise]. Thus, the system of right is the realm of actualized freedom [Conclusion]. This process above describes a kind of objectification of right itself. The objectified right, namely the world of spirit produced from within itself is both different from and same as what has been objectified. Thus, it is a kind of second nature in Aristotelian sense.

In Gans’ addition, Hegel explains freedom is the will itself, and the distinction between thought and will is simply that between theoretical and practical attitudes. They are not two separate faculties. On the contrary, the will is a particular way of thinking—thinking translating itself into existence. It is necessary here to explain what is theoretical and practical attitude in more detail. In Hegel’s sense, theoretical attitude means a subject gets to know an object. During this cognition process, the subject makes the object into his thought, which means the subject has deprived the quality of the object opposed to the subject before. The opposition between the subject and object has been sublated (aufgehebt) now and the mind of the subject has penetrated into the object. That is to say, the subject would find itself in the object. It’s time for us to explain a little about what is a subject and what is an object. A subject, from Hegel’s perspective, during the cognition process is in fact totally empty or a point, which means when we say “I”, we have abstracted all the characteristics of ourselves and considered “I” as pure thinking. In this sense, the subject here is being-in-itself (Ansichsein). The object, however, during our cognition process denotes the colorful canvas of the world before the subject. Because the opposition between subject and object would be sublated, the object here with regard to the subject, is also being-for-itself (Fürsichsein).

The difference between theoretical and practical attitudes lies in the different characters or actions of the subject. As we have talked above, during cognition process, the subject is a kind of pure thinking or abstraction. But with practical attitude, the subject “I” determines itself what to do and how to act. Thus, the subject here posits a difference which is alien to the subject. From this perspective, we could say the opposition we have met during cognition process in fact is not “absolute”, because the so-called objects are all what the subject has established and products of the spirit/mind (Geist). In this way, we could say the practical and theoretical attitudes are different but inseparable. Put it in the Fichte’s terms, we could express their relation as the identity between A=A and ~A≠A.

Besides, Hegel criticized the proof of the will’s freedom because it was derived from the various feelings and phenomena of ordinary consciousness. Hegel says, the deduction that the will is free and of what the will and freedom are is possible only within the context of the whole of philosophy, namely the whole development of the spirit from felling to representational thinking to thought.

In Section 5~7 Hegel talks about 3 elements of the will. (1) The will contains the element of pure indeterminacy or of the ‘I’’s pure reflection into itself. This is the limitless infinity of absolute abstraction or universality, which emancipates the will from any content as a limitation. In this sense, the freedom is a kind of negative freedom, which leads to fanaticism of pure contemplation in the theoretical level, and fanaticism of destruction, demolishing the whole existing social order, annihilating any organization which attempts to rise up anew in the practical level.

(2) In the same way, ‘I’ is the transition from undifferentiated indeterminacy to differentiation, determination, and the positing of a determinacy as a content and object, which is the moment of the finitude or particularization of the ‘I’. Hegel considers this step is as much negativity and sublation (Aufheben) as the first. The reason is the first step is the universal and the second one is particular, and the particular has already been contained within the first and is merely a positing of what the first already is in itself. There is a paradox Hegel reminds us that the pure and indeterminate ‘I’ could has determination in the second step. Hegel explains that this paradox is superfacial because the first moment is not true infinity or the concrete universality of the concept, but only something determinate and one-sides. For since it is abstraction from all determinacy, it is itself not without determinacy; and the fact that it is abstract and one-sided constitutes its determinacy, deficiency, and finitude. Hegel comments these two steps could also be found in the core of Kant’s and Fichte’s theory, such as Kant’s transcendental apperception and Fichte’s I=I. The former considers the pure ‘I’ as the culmination of his theory and the latter treats it as the fundamental basis of his Wissenschaftslehre.

(3) The will is the unity of both steps above: the ‘I’ on one hand is determinate and limited, which means it posits itself as the negative of itself; on the other hand, it is identity with itself and universality. If we say the first step is universal, the second particular, then the unity of both is individual. This is the freedom of the will, which constitutes the concept or substantiality of the will, its gravity, just as gravity constitutes the substantiality of a body. Hegel then explains the “individual” is none other than the “concept”, which means the individual is not a single unit, it is the result of the movement in which the will goes from indeterminacy to determinacy and returns into itself.

Hegel admits the first and second steps are easy for us to grasp, and the unity of them is difficult for us to comprehend, but he points out we in fact possess it in friendship. This friendship is a kind of Aristotelian virtue in Nichomachean Ethics expressed in Hegelian terms. Within this relationship, we are not one-sidedly within ourselves, but willingly limit ourselves with reference to an other, even while knowing ourselves in this limitation as ourselves. The freedom lies neither in ourselves or others, but in both.

In Section 8 and 9, Hegel explains in detail the second step, the determination of particularization. It has two elements: (1) this determination constitutes the formal opposition between the subject and object. As individuality would return into itself through this determinacy, this process is also a translating the subjective end into objectivity through the mediation of activity and of an external means. Hegel also points out, the determinacy with regard to form is the end of the will and the accomplishment of the end. It also has the aspect of content. In this sense, (2) the will’s determinations are its own and they are will’s content. Put it in another way, determinations are the predications of the will.

In Section 10, Hegel unfolds how thing-in-itself could transform itself into thing-for-itself. He thinks the determination of the will is immediate. Thus, the will is free only in itself or for us. Only when the will has itself as its object is it for itself what it is in itself. Our finite world is constituted by both being-in-itself and being-for-itself. Being-in-itself is a kind of undeveloped potentiality, which we should surely grasp, but at the same time we should also get to know its development and actualization in this world. This is the task for reason, not for understanding because the latter considers being-in-itself as free and doesn’t regard thing-for-itself as the development of the thing-in-itself, but just as given materials waiting for us to apply the concept of freedom into them.

Sec. 11~21: Development of the Free Will

In Section 11, Hegel talks about the will which is free as yet only in itself is the immediate or natural will, which contains our drives, desires, and inclinations as determinations or the content. This content, however, is an immediate form of rationality, the rational in itself. Thus, there is a difference between the form and content of the will. Because of these determinations, the will is a finite will within itself. In Section 12, Hegel thinks the system of the content exists only as a multitude of varied drives, each of which is mine in general along with others, and at the same time something universal and indeterminate which has all kinds of objects and can be satisfied in all kinds of ways. According what we have talked about in Section 7, Hegel points out in this double indeterminacy, the will gives itself the form of individuality. This will thus becomes a resolving will and an actual will. In these two sections, what Hegel has talked about is plainly different from Kant’s moral theory. In Kant’s sense, what contains human being’s inclinations is called the power of choice (Willkür), it is not the free will. People should conform to self-legislating Categorical Imperative, which excludes desires, drives and inclinations.

In Section 13, Hegel further points out the finite will we talked about is purely formal because there is a difference between its form and content. The only function of it is that of abstract resolution, and its content is not yet the content and product of its freedom. Thus, Hegel emphasizes the importance of making resolutions, by which man could enter into actuality. If not, a will resolving on nothing is not an actual will and empty, and it remains in the realm of infinitude.

In Section 14, Hegel says the finite will, purely with regard to its form, is the self-reflecting infinite ‘I’ which is with itself [bei sich selbst]. It stands above its content (various drives and further individual ways in which these are actualized and satisfied). Since it is formally infinite, it is tied to this content as to the determinations of its nature and of its external actuality. But since it is indeterminate, it is not restricted to this or that content in particular. In this sense, the content is only a possible one for the reflection of the ‘I’ into itself; and ‘I’ is the possibility of determining myself to this or to something else, of choosing between these determinations which the ‘I’ must in this respect regard as external.

With regard to the arbitrariness we have talked about, Hegel shows there is a paradox within it in Section 15. This arbitrariness contains two elements: free reflection, which abstracts from everything; and dependence on an inwardly or externally given content and material. Since this content is determined as a possible content in opposition to free reflection, it follows that arbitrariness is contingency in the shape of will. By this argument, Hegel criticizes the commonest idea that freedom is a kind of arbitrariness, namely, being able to do as one pleases. This view indicates a complete lack of intellectual culture; for it shows not the least awareness of what constitutes the will which is free in and for itself. This leads to what Hegel talks about in Section 16 that the form and content of the will are separate with each other. They are equally one-sided moment. This contradiction makes its appearance as a dialectic of drives and inclinations which conflict with each other in such a way that the satisfaction of one demands that the satisfaction of the other be subordinated or sacrificed, and so on. Hegel says in Section 17 that which determination should be subordinated or sacrificed is the contingent decision of arbitrariness, even if this decision is guided by calculations of the understanding.

This argument going further, Hegel in Section 18 says, when we judge the determinations of the immediate will as immanent and positive, we could say man is by nature good. But in so far as they are determinations of nature, opposed to freedom and to the concept of the spirit in general and therefore negative, they must be eradicated. Thus, man is by nature evil. Both opinions depend on subjective arbitrariness.

In Section 19, Hegel says drives should be freed from the form of their immediate natural determinacy and from the subjectivity and contingency of their content, and resotred to their substantial essence. Drives should become the rational system of the will’s determination. The content of the science of right is to grasp drives in terms of the concept. Hegel then explains these drives in detail, containing property, morality, family, the state, etc. When reflection applies itself to the drives (representing them, estimating them, comparing them with one another and then with the means they employ, their consequences), Hegel in Section 20 and 21 thinks it confers formal universality upon this material and purifies it. This process of elevation to the universality of thought is the absolute value of education. When the will has universality, it means the will itself its content. In this sense, the will is free not only in itself, but also for itself. In this sense, the will and what it wills (its content) is identical with each other. We also call this the identity between the concept and reality or truth.

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